Miscellaneous Questions

Questions of Public Law (1737)

Cornelius van Bynkershoek

BOOK 1, CHAPTER 25Miscellaneous Questions

I. THOUGH the States-General had promised that they would withdraw their troops from the fortress of Lieroort in East Friesland, they continued to occupy it on the pretext that the Spaniards would invade it and use it against them. They were clearly in the wrong, and acted contrary to the advice of Prince Maurice of Orange, who was otherwise not friendly to East Friesland. The counsellors of State also objected in 1621, and have since then repeatedly registered their disapproval, as Aitzema relates. There are men who call themselves lawyers that have lent their approval to such unjust acts, and I would that Grotius were not in this number. I can tolerate it in men like Zouche, who only copied the opinion from Grotius, and Buddeus. To prove their point they cite other examples of similar brigandage, as if there were any benefit in a precedent which only solved one problem by creating another. And what they say about the common practice of angary is not at all analogous to the present case, for ships while in the waters of another sovereign are in a measure subject to that sovereign, and may be taken according to a generally accepted custom, by which states and powers may be bridled. But to invade and occupy others’ dominions, cities, and fortresses is everywhere considered a wrong.

II. The King of Spain gave a domain as pledge for money which he had borrowed from one who was friendly to the King as well as to the States-General. The States-General took possession of the domain during war, and the counsellors of State gave it as their opinion that the pledge was extinct. This opinion is incorrect, for the States-General took only what belonged to the King, that is the right of empire and ownership as he had possessed it. His ownership was however, partial, since the land was mortgaged, and it was therefore only a partial ownership which the States-General obtained. If the King had sold a part of it to the States-General, the mortgagor would certainly have continued to hold his pledge against the whole, that is, against the King, the vendor, and against the States-General, the purchasers, because property when sold passes with all its burdens, which remain entire for the benefit of the creditor, unless he be an enemy. Now the States-General have possession of the whole estate, and have made it state property. But we must remember that lawfully they could not take or confiscate any but the King’s rights in it; the part that belonged to a friend could not with right be taken. If the pledge had also belonged to an enemy, it too might have been confiscated and the debt be cancelled.

III. It has been questioned whether or not any rights remain to those who have insured ships and cargoes or lent money thereon at maritime risk, if such ships after being captured by the enemy are later surrendered by the enemy or regained by ransom. Some counsellors of state are of the opinion that, if, after a ship has fallen into the enemy’s hands, it is given up by the enemy or ransomed by the owner, it has as it were ceased to exist, and if redeemed is to be considered as a new ship, so that those who lent the money or insured it suffer a total loss and have no further rights in it. This, however, seems neither equitable nor just to me, since such creditors are not held liable except for losses actually suffered, that is, only for the expenses in the saving of a ship, or for the ransom of a redeemed ship. Philip II of Spain in Article 27 of his regulations on insurance of January 20, 1570, forbids the ransoming of vessels from pirates, thereby implying that ships may be ransomed from real enemies; and his purpose, I think, was to show that the insurer was bound only to the amount of the ransom money, for otherwise there would be no point in speaking of ransom in a document treating wholly of insurance. Pomponius rightly says: ‘repurchase provides the occasion of a return of a thing captured, but does not alter the rights of postliminy’. Even the last clause of the insurance policies commonly used by merchants clearly proves that ransoming is permitted, but no less to the advantage of the insurer than to
that of the owner. We understand, therefore, that the loss to be covered by the insurer is that which has perished of the ship and cargo, or what is paid by way of ransom. However, if a captured ship has been brought to port and condemned, I freely grant that thereafter we should consider a ransom as a new purchase, and this opinion is sustained by the counsellors of state.

IV. The States-General had ordered their soldiers who held the citadel of Reid in the district of Juliers to obey the orders of Florence van den Boetseler, who was lord of the place. He showed this order to the commander of the citadel, and ordered the citadel to be surrendered to the Spaniards, who were approaching. The commander accordingly surrendered the place on August 30, 1621. But Maurice, Prince of Orange, was so angered by this that he punished him with death (September 14, 1621), on the ground that the order referred to civil not military matters. I doubt whether he was right in this, for since the citadel did not belong to the States-General, the order had no effect but that the right of the lord remained intact even after the soldiers had been received, and the soldiers were to defend the citadel as the lord of the place decided, lest he should be involved in the same difficulties as the Count of East Friesland at Lieroort, of whom I wrote above.

V. Alberico Gentili is of the opinion that it is permissible to continue work on fortifications while negotiations of surrender are in progress, and Zouche adopts the opinion from him. But King Ferdinand thought differently, for when he captured Reggio he hurled the French from the walls for such behaviour, as Gentili relates, citing Diovio. Again, when the Spanish were besieging Bergen, and, during a truce agreed upon for the burial of the dead, continued to complete their fortifications, and from them inspected the fortifications of the town, the Dutch complained that this behaviour was contrary to the usages of war, and that the truce was broken. However, in 1664 at Bylerschans both sides acted on the opinion that a truce did not preclude the building and completion of fortifications. However it is best, when a truce has been agreed upon, to suspend all warlike operations, for this seems to be the purpose of the truce, and if we continue operations in any way, a clear definition can hardly be given.

VI. When the bishop of Münster in 1665 and 1666 occupied, plundered, and devastated some districts of Overyssel, and the French troops who came to help the Dutch acted with little less moderation, the province appealed to the States-General for full indemnity for the damage, but the state counsellors responded that no indemnity ought to be given ‘except allowance for their taxes and contributions proportioned to the time that the districts had been in the possession of the enemy’; the rest ought to be imputed to fate, and considered as one of those calamities of war that those must bear on whom they happen to fall. Later the same counsellors changed their opinion somewhat, and conceded that the state ought also to take into account certain other expenses, especially the indemnities that had to be raised to save their towns from being burned, and the Estates of Holland acted in accordance with this second opinion on February 22, 1667. But, in my opinion, this latter decision was incorrect, for though I grant that those cities of Overyssel were saved from destruction by the payment of the exactions, it is not fair to charge this to the other provinces which were in no danger of being devastated. To take an analogous case, no well-informed lawyer would hold that the whole fleet ought to contribute, if one ship has to have recourse to jettison to save herself.

VII. Since any one province may lawfully wage war for its own account, it may lawfully make peace on its own account. It may also enter into alliances concerning matters in which it has independent jurisdiction. There is no doubt that such rights existed in the earlier days of our state, for in those days the individual states made wars and concluded peace. There is such a treaty, signed on July 1, 1463, by Utrecht, Muiden, and Weesp. Grotius has other examples in the first chapter of the Apologeticus, and the Estates of Holland many more in their pamphlet on the exclusion of the Prince of Orange. The tenth article of the Union of Utrecht provides that no provinces, cities, or parts of the Union shall enter into any alliance with any of the neighbouring powers without the consent of the other provinces of the Union, but the pamphlet of the Estates of Holland, just cited, explains correctly how this clause is to be interpreted. The Estates of Holland again on July 17,, decreed that there should be a new consideration with the provinces of Zealand and Utrecht regarding the proposed enlargement or re-constitution of the Union then existing. And on, September 21, 1662, the delegates of Holland and Zealand agreed not to permit the States-General to take any action concerning the command of the military service without the consent of all the provinces. There are indeed very many agreements made between separate provinces or between one province and neighbouring cities or sovereigns, and there is no question of their legality provided they concern questions that are in the jurisdiction of the contracting parties. On this topic consult also the twenty-third and twenty-fourth chapters above, and the fourth chapter of the second book.

VIII. The question has arisen whether, if a safe-conduct is granted to an enemy to come into our country, he may be sued here by his creditors. The lower court and the Court of Holland decided in 1588 that this could be done, and the Supreme Court agreed on an appealed case on September 18, 1590. This seems to me correct, for the safe-conduct is given to him qua enemy, that is, to protect him from hostile attacks; and neutrals may be sued for debt. But we must add, that if an enemy may be sued, it is not just for us to prevent him from employing our courts against us, as I have argued at length in the seventh chapter.

IX. A safe-conduct issued in time of war is given for the sole purpose of permitting the bearer to pass safely into the hostile country and remain there. Hence I am surprised that lawyers have raised the question whether the bearer of a safe-conduct can lawfully be arrested in his own country. The question was discussed in the case of the Marquis of Messarano, who had received a safe-conduct from the Spanish government permitting him to go from his castle to Venice, but before he set out his castle was captured by the Spaniards and he was taken prisoner. The question was whether the safe-conduct exempted him from having to pay a ransom. Belli, who himself sat as judge in the case, did not venture to give a decision, as he relates, and Zouche as usual reaches no decision. Menochius would differentiate whether or not the Marquis was then ready for the journey; for if he was, the safe-conduct ought to protect him, otherwise not. The doubts of Belli and Zouche seem to me as foolish as the decision of Menochius. When the lands and castle of the Marquis were invaded he was lawfully made a prisoner, because he had received a safe-conduct for the enemy’s territory, not for his own, nor had he bargained for a peace or truce, but merely for a passage through the Milanese country on his way to Venice. Whatever therefore was not within the stipulations, was subject to the rules of war.

X. As it is unjust to compel a sovereign to make war against his will, so it is unjust to force peace upon him. When France was at war with Spain, and we were afraid of her growing power, and the English feared that her greatness might shut off the sunlight from England, the Kings of England and Sweden and the States-General drew up an alliance on January 23, 1668, agreeing that Spain should be asked to accept certain specified conditions of peace, and if after her acceptance the French King still continued the war, they would intervene with force and compel the Kings to make peace. On another occasion when it did not seem advantageous to Europe that the King of Sweden should have possession of Denmark, the English, French, and the States-General on May 21, 1659, compelled the King of Sweden to make peace with Denmark; and thus the King of Denmark was rescued from the jaws of death whither he had blundered by exciting the wrath of a stronger neighbour.

The pretext for such acts of injustice is usually a ‘desire to conserve the peace’, as it has been the pretext for even greater wrongs which have been fashionable for some years past, seeing that sovereigns have banded together to dispose of the dominions and powers of other sovereigns at pleasure, and as freely as if these were their own. Such wrongs spring from that which we call ‘reasons of state’. If nations will yield to this beast, and permit themselves to appropriate others’ property, it will soon be useless to argue further about the principles of international law.